The Trump administration on Wednesday finalized rules that allow a wide range of employers to duck Obamacare’s contraceptive mandate by claiming “sincerely held religious beliefs” or a moral objection.
Dropping one day after a contentious election, the rules are designed to satisfy conservative and faith-based allies who fumed over President Obama’s push to require family-owned businesses, religiously-affiliated colleges and Catholic charities to insure forms of birth control they equated with abortion.
Under the new rule, employers who assert a good-faith objection would be exempt from including objectionable drugs and services in their insurance plans so long as they notify their employees of the change.
The Health and Human Services Department projects that no more than 200 employers will reel in coverage under the exemption, though the new rule will enrage Democrats and some civil liberties groups who say women’s rights to birth control will be threatened on a wider scale.
Publicly traded companies cannot claim the exemption, HHS said, though it’s still a vast expansion of the limited carve-outs provided under Mr. Obama.
Previously, only houses of worship and certain grandfathered employers were exempt. Others had to insure a range of contraceptives at no cost to female employees or, in some cases, sign an opt-out form that the Catholic order of nuns, faith-based colleges and other religious nonprofits viewed as a inadequate remedy.
An outgrowth of the 2010 Affordable Care Act, the prior administration said most employers must provide insurance that cover 18 types of FDA-approved contraceptives, including birth control pills or the morning-after pill that some religions object to as sinful.
Fights over the mandate sparked two rounds of lawsuits against the Obama administration before bleeding into the Trump administration, which was far more sympathetic to objectors.
The Little Sisters of the Poor, an order of Catholic nuns dedicated to caring for the elderly, and a number of other charities sued over the Obama-era rules, saying that signing the opt-out “accommodation” made them complicit in providing the contraceptives they object to.
The debate raged all the way to the Supreme Court, but deadlocked justices on a short-handed bench in 2016 ordered the parties to find a way that satisfied both sides.
The Trump administration pushed the broad carve-out to resolve the fight. It said nonprofits can still avail themselves of the accommodation if they want to, so employees get their contraceptives from another party.
Employers can also claim an exemption for certain contraceptives they find truly objectionable, but not others.
A previous iteration of the rules was enjoined by federal judges who said the administration didn’t go through an adequate notice-and-comment period. The latest rules were subject to comment, but still might be subject to legal challenges once the courts sort out what to do with the older complaints.
“The lawsuits are now on appeal, albeit lawsuits about an earlier version of these rules,” said Nicholas Bagley, a University of Michigan law professor who tracks the debate. “And plaintiffs doubtless still have concerns, both about whether this after-the-fact notice-and-comment process was adequate and on the merits.”
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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